Nathaniel Ochigbo V. Idi Umoru (2009)

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MARY U. PETER-ODILI, J.C.A.

Sometime in 1994, Nathaniel Ochigbo, the original Plaintiff (hereinafter called “The Appellant”) filed a case against Idrisu Onoja and Onoja Ogba before the Upper area Court, Ankpa claiming declaration of title to land at Agwodaba, Okpo in Olamaboro local Government Council of Kogi State, for himself and on behalf of Ochigbo Obekpa family. Besides the claim for declaration of title, the Appellant equally claimed ejectment and forfeiture of the said land against the original Defendant s as well as an injunction restraining them and their agents from further interfering with the said piece of land. Subsequently, the case was transferred from the Upper Court, Okpo.

The original 2nd Defendant, namely Onoja Ogba was reported dead on 22/9/94 hence his name was struck out from the case. Idrisu Onoja also called Idi Umoru and this accounts for why he was bearing the name Idi Umoru from the lower Court and so the said Idi Umoru is the Respondent in its Judgment delivered on 31/8/95, the Upper Area Court, Okpo, found in favour of the appellant by granting the reliefs sought. Dissatisfied with the said Judgment, the Respondent filed an Appeal to the High Court of Justice, Kogi State sitting at Ankpa in its appellate capacity. The Respondent being out of time applied for extension of time within which to file the Notice and grounds of Appeal out of time. However there was no evidence of payment of filing fees for the Notice of Appeal and the Respondent brought a Motion afterwards to file Additional Grounds of appeal. There was no evidence of payment of filing fees by the Respondent in respect of the additional Grounds of Appeal.

In their Judgment delivered on 28/4/04 the Kogi State High Court sitting in Ankpa in its appellate capacity allowed the Appeal of the Respondent, set aside the decision of the trial Area court, Okpo and dismissed the Appellants’ case. For that the Appellant has filed this appeal dated and filed on 28th day of May 2004.

The Appellant with leave of this Court granted on 21st June 2006 amended the original Notice of appeal by filing Additional Grounds of Appeal. The Amended Notice of Appeal filed on 15/12/04 was deemed filed and served on 21/6/06 containing twelve Grounds of Appeal.

STATEMENT OF FACTS:

The Appellant herein filed this case on behalf of himself and Ochigbo Obekpa family on behalf of his deceased father’s family. He lives in Agwodaba in Okpo Local Government Council of Kogi State. His case is that his father now deceased owned the piece of land in dispute, lying and situate at Agwodaba in Okpo Obekpa. That his father was given the land as a gift by one Ochoho Ujah, his uncle. That Ochoho Ujah inherited the land from his father by name Ako-Ojo and Ako-Ojo was the original founder and user of the land and the first to settle in Agwodaba. That the Appellant’s father used the land for farming and also lived on part of the land. Following the death of Appellant’s father, the land in question devolved on the children including the Appellant. A dispute arose between appellant and one Momoh Abah, resulting in clear cut demarcation between the Appellant and the said Momoh Abah sometime on 27/4/92, by Ademu Idoko, the Gago of the area when the Respondent contested the demarcation, Adamu Idoko, the Gago, re-demarcated the boundary with the aid of Ugba tree. About April 30, 1992, the Respondent moved Into the land in question is his determination to possess it. He brought in a surveyor from the Local Government to survey the disputed land and ultimately secured a Local Government Certificate of Occupancy thereon. The Appellant challenged the surveyor to stop any action, maintaining that the land belongs to him and out of panic the Respondent ran to the Eje of Olamoboro to help him out. The Eje of Olamoboro visited the land in dispute and ‘allocated’ the land to the Defendant. Aggrieved by the verdict of the Eje of Olamobioro, the Appellant sued the Respondent hence, this case.

On the other hand, the Respondent maintained a rival claim to ownership of the land. He claimed that his father gave the land to Appellant’s father. He confirmed that his father married Appellant’s father’s daughter by name Anoyi hence Appellant’s father was his own father’s in law. He traced the pedigree of ownership of the land to Ako-Ojo the person who first of all cleared the land as origin of the land. He confirmed that he procured a Certificate of Occupancy from Olamoboro Local Government Council in respect of the land at the instance of Eje of Olamoboro. According to him the land was given to his father by Oguche Emire who had the same father with his own father. That same father is Ako-Ojo from whom Respondent claimed Oguche Emire inherited the land. That his father lived and was buried on the disputed land which claim he could not substantiate being unable to identify the grave when the visit to the locus in quo took place. The identity of the land was not in dispute. At the conclusion of the trial and visit to the locus in quo the trial Upper Area Court, Okpo had no difficulty in entering Judgment for the Appellant and sustaining his claims. The Judgment was overturned by the Lower Court.

On the date of hearing, 20/5/09, Mr. Akubo SAN adopted the appellant’s Brief dated 10th July 2006 and filed on 12/7/06. Also adopted was Appellant’s Reply Brief dated 20/2/07 and filed on 23/3/07. Learned counsel for the Appellant reminded the Court that Respondent’s Brief filed 5/5/06 was invalid since when the motion for extension of time within which to file Respondent’s Brief and they were granted 7 days but failed to file a Brief.

The respondent through counsel, Mr. Ejembi who held brief for S. A Agada Esq. for the Respondent conceded that the Respondent had no Brief since they had not filed within the 7 days granted them on 20/6/07.

Since the counsel for the Respondent had not applied for adjournment and also no pending motion from Respondent and no Brief the matter was reserved for judgment.

The Appellant had formulated five (5) issues for determination which are:-

1. Whether upon careful and dispassionate evaluation of evidence in this case, the Appellant could be said to have sufficiently identified the parcel of land, subject matter of this case without producing a sketch/site plan so as to entitle him to judgment
2. Whether the learned Judges of the High Court of Kogi State sitting on Appeal were right in their conclusion that the Appellant did not prove his root of title to the disputed land/or prove his case on preponderance of evidence.
3. Whether the Learned Judges of the High Court of Kogi State were justified in interfering with the findings of fact made by the trial Upper Area Court by coming to the conclusion that the Judgment of the trial Court was perverse on the ground that the trial court did not do any serious evaluation of evidence and that there were unresolved contradictions in the evidence of the Appellant and his witnesses.
4. Whether the Learned Judges of the Kogi State High Court had the Jurisdiction to entertain the Appeal in the absence of evidence of filing and/or payment of requisite filing fees both for the Notice of Appeal and the Additional Grounds of Appeal dated the 3rd day of March, 2002.
5. Whether the Learned Judges of the Kogi State High Court of Justice (sitting on Appeal) violated Section 42 of the Constitution of the Federal Republic, 1999 by preferring the reason of the Respondent to that of the Appellant on the ground that the Appellant and his father were Idoma hence strangers.

ISSUE NO.1:

Whether upon careful and dispassionate evaluation of evidence in this case, the Appellant could be said to have sufficiently identified the parcel of land, the subject matter of this case without producing a sketch/site plan so as to entitle him to Judgment.